was not unreasonable for a woman in appellant's position to suppose that Hayford, having received the money as the agent of her debtors, had deposited it temporarily in the bank in his own name, until such time as he could make actual payment of it to the creditor, and receive satisfaction of the mortgage, and take from her the note for cancellation. Why should appellant have thought or presumed that Hayford had committed the crime of signing her name without authority, that he might get into his possession money that he had no right to possess? For appellant to think that she was treating with the agent of her debtors when she received the money from him at the bank was perfectly reasonable, and consistent with all the circumstances of the case as they appeared to her at that time,-and there is nothing to cast discredit on or contradict her sworn statement that at that time, and until long after the commencement of this action, she had no knowledge of Hayford's previous unauthorized acts. In using Hayford as their agent in negotiating the loan, and in subsequently referring her to him without notifying her that he was no longer their agent, respondents made it possible for appellant to be deceived by him; and they should not thereafter be heard to say: "You ought to have known that he was not acting as our agent, but as your agent. You should have inquired and ascertained whether things were in fact as we had made them appear to you." The argument of respondents seems to concede that knowledge of the acts of pretended agency or its equivalent is a necessary condition of a valid ratification of such agency. "To constitute a ratification, the principal must be acquainted with that which has actually been done." Dean v. Bassett, 57 Cal. 640. "Before ratification can be inferred, such knowledge must be shown." Maze v. Gordon, 96 Cal. 61, 30 Pac. 962. It was not sufficient that appellant knew that Hayford had received money that was coming to her from the insurance company, but it should have been shown that she knew or ought to ' have known that he acted as her agent in the matter. The evidence showing as it does without conflict that appellant had no knowledge of the previous unauthorized acts of Hayford, and that her want of knowledge was in no way attributable to any negligence on her part, the finding of payment as to any amount in excess of $550 cannot be upheld on any theory of the agency of Hayford being created by subsequent ratification. The finding of payment is for these reasons in direct contradiction of the evidence. It is recited in the receipt given by Hayford to the insurance company in the name of appellant that "in consideration of said payment said policy is surrendered to said company for cancellation, and all further claim by virtue of said policy forever waiv ed." This would indicate that Hayford had received the policy from the respondents, and had surrendered it to the insurance company. He could not have received the policy from appellant, for the evidence shows without dispute that she never had it. The strong probabilities are, also, that Hayford obtained the mortgage from Mrs. Nye, and that it was by reason of his possession of the policy and the mortgage, both doubtless obtained from respondents, that he was enabled to deceive the insurance company into thinking that he was the authorized agent to receive and receipt for the money. At the same time the Nyes seem to have been familiar, from personal experience, with Hayford's disposition to keep things that did not belong to him. If these facts do not furnish a good ground for invoking the maxim that, "where one of two innocent persons must suffer by the act of a third, he by whose negligence it happened must be the sufferer" (Civ. Code, § 3543), they at least tend to render more satisfactory to the court the general conclusion already stated. On the strength of the foregoing conclusions, it is also apparent that the court erred in admitting in evidence the check and receipt to which the name of appellant had been signed without authority. The judgment and order appealed from should be reversed. 1. Plaintiff's husband took out an endowment certificate in favor of plaintiff in the endowment rank of the Supreme Lodge Knights of Pythias of the World, agreeing to be governed by all the laws of such corporation then in force or thereafter enacted. Thereafter, without the knowledge of plaintiff's husband, and before the expiration of the charter of Lodge Knights of Pythias, was incorporated such corporation, the defendant, the Supreme by a special act of congress, under which all the assets and obligations of the old corporation, including the certificate held by plaintiff's husband, were transferred to the new corporation, which thereafter received the dues paid on such certificate until the death of the insured. Held, that deceased was not bound by a law passed by defendant, without deceased's knowledge or consent, providing that active army service by any present or future member of the endowment rank should forfeit his cer tificate. Department 2. Appeal from superior court, city and county of San Francisco; Geo. H. Bahrs, Judge. Action by Louisa Richter against the Su1 Rehearing denied August 6, 1902, preme Lodge Knights of Pythias. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Affirmed. T. J. Crowley, for appellant. Wal. J. Tuska, for respondent. PER CURIAM. This is an action to recover from defendant the amount of a certain certificate or policy of insurance upon the life of plaintiff's husband. The cause was submitted to the court on an agreed statement of facts. The defense was that "the certificate and all claims thereunder," became "forfeited by the voluntary act of Reinhold Richter, the insured, upon his entering into active service in the army in time of war, in violation of a law of the endowment rank and of his contract." Plaintiff had judgment, from which, and from the order denying its motion for a new trial, defendant appeals. In his application Richter agreed to be governed by all the laws of the Supreme Lodge Knights of Pythias of the World then in force or that might be thereafter enacted. A certificate or policy of insurance was issued to him in 1891 in consideration of full compliance with all the laws governing or to govern the endowment rank of this supreme lodge. On September 1, 1896, defendant passed the following law: "Active service in the army or navy in time of war shall forfeit the certificate and all claims thereunder of any member of the endowment rank or thereafter to be admitted." On April 22, 1898, Richter entered into active military service in, the army as an officer of the First California National Guard, was ordered to the Philippines, and on August 4, 1898, died from mortal wounds received by him at the hands of the Spanish forces near the city of Manila. The subordinate lodges of the Supreme Lodge Knights of Pythias of the World were duly authorized January 23, 1891, "to establish a branch or section of the endowment rank in the city and county of San Francisco to be known as 'Section No. 70, Endowment Rank Knights of Pythias,' * and has ever since continued to do and transact such business, * and that upon complying with certain forms, rules, and regulations a certificate of membership will be issued." It further appears "that on the 22d day of April, 1898, Reinhold Richter was still a member in good standing in the endowment rank of the Knights of Pythias. That before leaving the city of San Francisco for the Philippine Islands, Reinhold Richter, on or about May 6, 1898, informed the secretary of section No. 70 of the endow ment rank of the Knights of Pythias at said city that he was about to depart from the said city for the said islands in the service of the United States government as a volunteer, and while in such service, and before his departure, paid to the said secretary his * dues and assessments then due." "That after such notice the said Reinhold Richter continued to pay to the said secretary of endowment section No. 70, and he continued to receive and forward the same to the defendant, and the defendant continued to receive and accept the dues and assessments payable on and under the said certificate No. 29,419 during each and every month thereafter while said Reinhold Richter was in the service of the United States government as such volunteer during said war with Spain, until the day of the death of the said Reinhold Richter. * * That at the time of his death the said Reinhold Richter had paid in full all dues, assessments, and payments required by said endowment rank and the laws of said Supreme Lodge Knights of Pythias of the World; was in good standing under the said laws, so far as his financial obligations to the order were concerned." The defendant had no notice, so far as appears, except the notice given to the secretary of endowment rank, section 70, that Richter had become a soldier in the war with Spain. This order came into existence in 1863, and on May 5, 1870, was incorporated under an act of congress as the Supreme Lodge Knights of Pythias, but conducted its business under the name of Supreme Lodge Knights of Pythias of the World. On August 5, 1875, the act of May 5, 1870, was amended, and the period of existence of the corporation was fixed at 20 years, and still continued to do business under the name of Supreme Lodge, etc., of the World, and it was while transacting business under these acts that Richter became a member. In 1894 "divers officers and members of the Supreme Lodge Knights of Pythias of the World, without the knowledge or consent of plaintiff or of the said Reinhold Richter," applied for and procured from the congress of the United States a special act incorporating defendant as in this action designated, and the act provided "that all claims, accounts, debts, things in action or other matter of business of whatever nature now existing for or against the said Supreme Lodge Knights of Pythias of the World shall survive and succeed to and against the defendant herein." Defendant assumed the business of the former corporation on and after June 29, 1894, "received all dues and assessments paid by Richter to the endowment rank under and pursuant to the said certificate issued to him, * * and assumed and agreed to pay all obligations, etc., of the endowment rank" of the former corporation, including Richter's certificate, "and did create a board of control to govern the said endowment rank." Richter had no knowledge of this change, and "continued to pay dues to section No. 70, endowment rank, in the same manner, and they were received and receipted for in the same manner, as before the year 1894. No notice or information was given to the members of the order of the endowment rank that the funds guarantied for the pay inent of their endowment certificates had been delivered over to a new corporation, or that their dues and assessments were paid to and received by the new corporation, the defendant." It appears that the charter of the corporation existing when Richter became a member had not expired, either by limitation or dissolution, when the new corporation was formed. Plaintiff contends that defendant, having assumed all obligations of the corporation whose certificate he held, could not, without his consent, adopt any law affecting or forfeiting his contract as a member of the existing corporation; that defendant is a different entity, and, while the old organization might transfer its funds to the new upon the latter agreeing to pay its obligations, it could not delegate power to make laws as to existing contracts. Defendant's only reply is that, where one seeks the benefits under a contract, he must first perform all of the obligations and conditions devolving upon him. But Richter's obligation was "compliance with all the laws governing this rank [endowment rank] now in force, or that may hereafter he enacted by the Supreme Lodge Knights of Pythias of the World." He did not agree to comply with all the laws governing this rank which some other corporation, as assignee of the certificate, might enact. Richter did not have actual knowledge or notice that defendant existed, nor that his obligation had been assigned to defendant, nor that any law had been passed by defendant forfeiting his certificate should he enter active military service in time of war. How can he, as a member of the endowment rank under the old corporation, be held to constructive notice of laws passed by the new corporation, of whose existence he was in entire ignorance? How can he be held to have forfeited his certificate for an act which was not forbidden under his contract? How, in conscience, can defendant, as assignee of the contract, claim a forfeiture because of Richter's violation of a condition which the assignee imposed without his knowledge or consent. It seems to us too plain for argument that, before the successor in interest of these obligations held by the old company could pass laws affecting their substance, the holders of certificates should, by some act or by some conduct, consent to be governed by the new company, and should agree to be bound by its laws. We do not think Richter was bound by the law now sought to be enforced, of which he had no knowledge, and that was passed by a corporation to which he owed no duty or obligation. Defendant assumed and agreed to pay the policy, but Richter agreed to nothing with defendant beyond his original obligation to the corporation with which he contracted. The correctness of this view seems to us too obvious to call for further comment. It is not necessary to consider the numerous other points in the case. The judgment and order are affirmed. (136 Cal. 682) YOUNGER v. SUPERIOR COURT OF SANTA CRUZ. (S. F. 2,197.) (Supreme Court of California. July 3, 1902.) PARTIES-JOINING JUDGE AS PARTY TO DISQUALIFY HIM-STRIKING COMPLAINT FROM FILES CONTEMPT-CERTIORARI. 1. A complaint in partition made the judge of the superior court a party defendant, and alleged that he claimed to have some interest in the land, but that he had no interest therein. After service of summons on the judge, without answering or appearing in the cause, he, of his own motion, and without notice to any party, caused an order to be made and eutered striking the complaint from the files, reciting that the allegations therein as to him were false, deceitful, and abusive of the process of the court, and made for the sole purpose of disqualifying him in the trial of the action. Code Civ. Proc. § 170, provides that a judge shall not sit or act in an action to which he is a party, or in which he is interested. Held, that the judge could not thus arbitrarily determine that he was not a party and not interested in the action. 2. Even if a plaintiff is guilty of contempt in making the judge a party for the purpose of disqualifying him, the judge should not punish her by striking the complaint from the files. 3. An order in partition arbitrarily causing the complaint to be stricken from the files on the ground that it improperly made the judge a party for the sole purpose of disqualifying him was reviewable on certiorari. 4. Where in partition the judge arbitrarily caused the complaint to be stricken from the files, a defendant alleged to be a tenant in common with plaintiff, and who has answered, is beneficially interested within the meaning of Code Civ. Proc. § 1069, and may apply for a review of such order. Application for certiorari by Charles B. Younger, Jr., to review an order of the superior court, Santa Cruz, striking a complaint from the files. Order reversed. Joseph H. Skirm and Chas. B. Younger, Jr., for petitioner. Lucas F. Smith and Lindsay & Netherton, for respondent. COOPER, C. This is an application for a writ of certiorari for the purpose of reviewing an order of the superior court of the county of Santa Cruz striking a complaint from the files. It appears from the verified petition and return that on July 15, 1899, one Helen Younger, as plaintiff, commenced an action in the superior court of Santa Cruz county for the partition of a tract of land in said county, described in the complaint, according to the respective rights of the parties to said action. The petitioner, Charles B. Younger, Jr., was made defendant, and the complaint in said cause alleges that the plaintiff therein and said Charles B. Younger, Jr., as joint tenants with each other, hold as tenants in common with certain other defendants therein named. In said complaint Hon. Lucas F. Smith, the judge of the superior court of Santa Cruz county, was made a defendant, and it is alleged that he "claims to have some interest in or claim to or upon said above-described tract of land," but that he has no interest in the same, nor in any part thereof. On the 18th day of July, 1899, a summons was issued upon said complaint, which was served upon the Honorable Lucas F. Smith on the 8th day of August, 1899. On the 17th day of August, 1899, after some of the defendants had appeared in the said action, and before any answer or appearance had been made by said Hon. Lucas F. Smith, the judge of said superior court, he, as superior judge, caused to be made and entered the order complained of here directing the said complaint to be stricken from the files of the said court. The said order recites that the complaint is false, deceitful, and abusive of the process and proceedings of the court in the matter of the allegation that Hon. Lucas F. Smith claims to have some interest in or claim to the land described in the complaint, and the order recites: "It further appearing to the court that said allegation, in so far as it relates to the said Lucas F. Smith, is absolutely false, and was known by the said plaintiff, Helen Younger, at the time of the signing of said complaint, and also at the time of the filing thereof, to be false, and was therein alleged, as the court is satisfied, for the sole purpose of making said Lucas F. Smith a party defendant in said action in order to disqualify him as judge of said court in the trial of said action, and to prevent him from acting therein as such judge, and for no other reason, and to thereby impede and embarrass the due administration of justice in said superior court; believing that every court of record has and should have the inherent right to protect itself against all forms of insult, deceit, and fraud, however attempted to be practiced upon it, and that it is the duty of the court so to do; and for the foregoing reasons, it is now, therefore, by the court here considered and ordered that the said complaint so filed as aforesaid be, and the same hereby is, stricken from the files of this court. Done in open court this 17th day of August, 1899. Lucas F. Smith, judge of said superior court." The above order was made by the judge of said court of his own volition, without notice to any one, in the absence of plaintiff, and without any motion or suggestion by any party to said action, save the judge of said court. There was nothing in the complaint containing even a suggestion of disrespect to the court or the judge thereof. There is nothing to prevent a party from bringing an action against the judge of the superior court, or any other judge, in a proper case. The mere fact of bringing the suit and making the judge a party, if done in good faith, is not in any way contempt of court. No doubt but that, if the judge was made a party by plaintiff, or by the advice of an attorney, for the sole purpose of disqualifying him, the parties so doing should be dealt with and punished in a proper proceeding, and after notice. If an attorney of this court should so far forget the oath he bas taken and the obligation he owes to his cient and to society as to advise or be a par ty to preparing a sham pleading solely for the purpose of disqualifying the judge, he should be dealt with in a manner so as to prevent him from again casting odium upon the high profession of the law. But no punishment should be inflicted and no judgment passed without a hearing. So, if the plaintiff has been a party to a sham attempt to disqualify the judge of the court having jurisdiction, she should, after a hearing, be properly dealt with; but not by depriving her of her property, or striking her complaint from the files of the court. We must presume that an attorney will not violate his oath, and that the complaint was filed in good faith. Certainly the judge has not the power to pass upon his own qualification without a hearing, and to determine that he has no interest in the case, without giving any opportunity to any one to show that he has such interest. The provision of the Code of Civil Procedure (section 170) that a judge shall not sit or act in an action or proceeding to which he is a party, or in which he is interested, is plain and mandatory. Yet the expression "to which he is a party" means to which he is a real party, and made so in good faith. It evidently was not intended that a plaintiff could make all the superior judges in the state save one parties, and thus select his own judge. The question as to whether or not the judge is a party, made so in good faith, or whether or not he is interested, should be determined upon notice, and after a hearing, so that the record can be preserved, and the matter passed upon in this court, in case it becomes necessary. And where the judge is made a party upon proper allegation he cannot arbitrarily determine that he is not a proper party, nor that he is not interested. In proceedings for contempt the court cannot deprive parties of all redress in the ordinary course of law, nor of the right to have the courts pass upon questions properly presented. It must proceed according to the law of the land, and not condemn without a hearing. It must proceed from inquiry, and render judgment only after trial. The supreme court of the United States in Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215, in a very able and exhaustive opinion, and after reviewing the authorities both in England and in this country, held that a court had not the power to strike out defendant's demurrer and direct judgment against him by default as a punishment for contempt in refusing to obey the order of the court to pay alimony in a divorce case. In the opinion it is said: "Can it be doubted that due process of law signifies a right to be heard in one's defense? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, could it be pretended that such an enactment would not be violative of the constitution? If this be true, as It undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which, if done under the express legislative sanction, would be violative of the constitution? If such power obtains, then the judicial department of the government, sitting to uphold and enforce the constitution, is the only one possessing a power to disregard it. If such authority exists, then, in consequence of their establishment to compel obedience to law and enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent. • Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be by the law of its organization over the subject-matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made. It is a summons to him to appear and speak, if he has anything to say, why the judgment sought should not be rendered. The denial to a party of the benefit of a notice would be, in effect, to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to the party, 'Appear and you shall be beard,' and, when he has appeared, saying, 'Your appearance shall not be recognized, and you shall not be heard.'" The above language was quoted and approved by this court in McClatchy v. Superior Court, 119 Cal. 419, 51 Pac. 696, 39 L. R. A. 69, and Foley v. Foley, 120 Cal. 40, 52 Pac. 122, 65 Am. St. Rep. 147. In the latter case it was held that the court had no power to strike out defendant's demurrer as a punishment for contempt in refusing to pay alimony. In the opinion it is said: "While the general remedial power of a court of equity to take all proper measures to coerce respect and obedience to its lawful orders has always been recognized to the extent that a party in default may justly be denied the right to have any affirmative action of the court sought by him until he shall have purged himself of his contempt, that power has never extended to a point that would authorize a denial to a party of the right to be heard in defense to any affirmative judgment proposed to be taken against him whereby he would be deprived of any substantive right of person or property." The court, in making the order, exceeded its jurisdiction, and there is no other plain, speedy, and adequate remedy. No judgment was entered, and there does not appear to be any right of appeal from the order. "Any departure from those recognized and established requirements of law, however close the apparent adherence to mere form in method of procedure, which has the effect to deprive one of a constitutional right, is as much an excess of jurisdiction as where there is an inceptive lack of power." McClatchy v. Superior Court, supra. Also, see Schwarz v. Superior court, 111 Cal. 112, 43 Pac. 580; Tomsky v. Superior Court, 131 Cal. 623, 63 Pac. 1020. And the petitioner is a party beneficially interested within the meaning of Code Civ. Proc. § 1069. He has filed an answer, in which he asks for a partition of the property. In such case all the parties are actors, and interested in the proceeding. Senter v. De Bernal, 38 Cal. 642; Grant v. Murphy, 116 Cal. 427, 48 Pac. 481, 58 Am. St. Rep. 188. We advise that the order be set aside and annulled. We concur: CHIPMAN, C.; HAYNES, C. PER CURIAM. For the reasons given in the foregoing opinion, the order is set aside and annulled. (136 Cal. 666) PEOPLE v. GONZALES et al. (Cr. 847.) 1. Defendant, accused of murder, was kept in jail for a month without being permitted advice of counsel and without preliminary examination; being visited once or twice a day by the sheriff, who told him he had better tell the truth, that a former statement denying guilt was untrue, that there was evidence tending to implicate him in the crime, and that he (the sheriff) believed accused was implicated, but would do what he could for him if he would tell the truth. Held, that defendant's statement made under these circumstances was not free and voluntary, and should have been excluded. 2. Defendant, accused of murder, stated that some time before the murder his codefendant had broached the subject of killing deceased for his money. On the night of the killing, defendant was playing cards with deceased in the latter's saloon, when his codefendant came in, and drinks were ordered; and as deceased was bending over behind the bar the codefendant struck him with a rifle, and afterwards shot him. Defendant claimed not to have known that his codefendant was about to kill deceased, but, after the killing, assisted in searching the house for money, which was found and taken, and in putting blankets saturated with kerosene over the body and burning them. Held not to be exculpatory in character, so as to be admissible, though not free and voluntary. 3. Where two defendants were tried jointly, evidence by third parties of a statement made by one defendant tending to inculpate both, but inadmissible as to the maker because not voluntary, is hearsay as to the other. 4. Two defendants were jointly tried for murder, the same counsel acting for both,-aud a statement of one defendant was erroneously admitted over the objection that it was not voluntary. This was the only objection made, though as to the other defendant the statement was objectionable only because it was hearsay. Held, that on appeal the latter defendant was not precluded from taking advantage of the error because there was no objection on the ground of hearsay, but that both defendants were entitled to take advantage of the objection made. 5. Where two days' notice of the settlement of the bill of exceptions in a criminal case was not given the district attorney, as required by 1 Rehearing denied July 25, 1902. 3. See Criminal Law, vol. 14, Cent. Dig. § 1002. |